ABSTRACT
This chapter explores the problem of polarization as it impacts on regulation. It shows that the dearth of new significant regulatory statutes in the post-1990 period has been a product of growing polarization and gridlock. There is good reason to believe that polarization and gridlock have created greater uncertainty about agency budgets. Although polarization and gridlock have had some negative effects on presidential power, it has also enhanced it. In the post-1990 period, polarization and gridlock have once again created the preconditions for a presidential countermovement—this time, a greater tendency toward unilateralism. Congress can object to presidential unilateralism as a violation of the constitutional separation of powers—a common refrain from the opposition, regardless of party—but it faces distinct challenges in responding. Congress passed a series of regulatory statutes that established firm implementation timetables and provided parties with the opportunity to sue agencies for a failure to execute their nondiscretionary duties.
